Never attribute to malice that which is adequately explained by stupidity.

Thursday, July 3, 2014

Hobby Lobby & The Supreme Court

In a deeply-divided 5-4 decision, the United States Supreme
Court recently ruled in favor of craft-chain Hobby Lobby in regards to
providing certain forms of birth control under the Affordable Care Act. Supporters
of Hobby Lobby cast the company’s executives as stalwarts of religious freedom
while detractors saw the case as a small group of entrepreneurs attempting to
force their religious views upon their workforce.

The majority opinion was based on interpretation of the 1993
Religious Freedom Restoration Act which was largely enacted to protect Native
American religious practices. Indeed, it was widespread Congressional outrage
with a 1990 Supreme Court ruling in Employment
Division v. Smith that led to the bipartisan effort to pass the RFRA. The Smith
Case involved two Native Americans who were fired from their jobs for testing
positive for peyote and were subsequently denied unemployment benefits by the
State of Oregon. The Supreme Court’s decision to uphold the firing and denial
of benefits to these two Native Americans for the practice of their religion
was so widely derided that the effort to pass the RFRA was supported by both
the ACLU and the National Association of Evangelicals. The irony of this same
act being cited by the very court it was meant to repudiate is stunning. The
fact that the act was used to partially overrule the very legislative body that
created it is politics.

The core of the ruling is whether or not the Affordable Care
Act’s provision requiring medical coverage of any FDA approved birth-control
method “substantially burdens a person’s exercise of religion even if the
burden results from a rule of general applicability.” In Hobby Lobby’s case,
they argued that the use of both the “morning after pills” (Plan B, Ella, etc.)
and IUDs were tantamount to abortion, which the company’s owners objected to on
religious grounds.

This was part of a larger “birth begins at conception”
movement which raises an interesting question about what Hobby Lobby considers “conception”.
The “morning after pill” simply prevents the woman from ovulating thereby keeping the
sperm and egg from ever meeting. I could find no scientific evidence that it
was effective at preventing an already fertilized egg from implanting.
Essentially, this makes it no different than the condoms, spermicide,
traditional birth control pills, tubal ligations, or vasectomies that Hobby
Lobby is willing to cover. The only difference here is that the “morning-after”
pill works after coitus not before or during. One could even argue that by
allowing access to emergency contraceptives that prevent ovulation now, we are
essentially reducing the number of actual abortions being sought later.

While the debate about the “morning after” pill is well
publicized, I was surprised to find Hobby Lobby’s objection to IUDs
(intrauterine devices) since they are actually more efficient at preventing
fertilization that condoms or pills. While just 9% of American women currently use
them (compared to 41% in other developed nations) they have been gaining in
popularity here due to their low instance of side effects and ability to
conceive immediately upon removal. Hobby Lobby doesn’t wish to cover them because
it is possible to use certain IUDs as an emergency contraceptive if it is
inserted within five days of intercourse and they could prevent implantation of
a zygote in some cases. Not only are IUDs statistically unlikely to be utilized
in this method, most gynecologists test for pregnancy before they will even
insert the device. Perhaps if Hobby Lobby wished to prevent this use they could
cover IUDs with the requirement that the physician perform a pregnancy test
prior to insertion.

Unfortunately, like all discussion involving abortion and
religion, we are forced to split hairs. The Green Family, which controls Hobby
Lobby, happens to interpret their religious convictions through the lens of
Pentecostalism. They believe that while certain forms of birth control
(condoms, vasectomies, tubal ligations, traditional birth control pills) are consistent with Christian faith; others (IUDs, Morning-After Pills) are forms of abortion. In many cases, this
means that their distinction between prudent family planning and pre-meditated murder
could be simply a matter of minutes.

If the Green Family happened to be devoutly Catholic instead
of Protestant, they would likely consider any interference with the
reproductive process immoral. If Hobby Lobby had been started by a Jehovah’s
Witness family, they might have balked at covering lifesaving blood
transfusions. Had the Greens been Muslim, perhaps porcine heart valve
replacement would have been a sinful use of the company’s money. Scientology
would have exempted them from being forced to cover anti-depressants or
medically treat PTSD. I say that not to diminish anyone’s religious views, but
to remind you that we are legally placing ourselves in a position to allow
someone else’s convictions regarding morality and medicine to limit the choices
available to others simply because they share a payroll system.

Theoretically, if everyone who worked at Hobby Lobby already
held the exact same religious convictions as the chain’s proprietors, this
ruling would be unnecessary since no one would take advantage of these
contraceptives anyway. The ruling is necessary precisely because not everyone
under their employ shares their views on religion or morality. The Greens (as
individual citizens) were under no personal legal obligation to utilize any
form of FDA-approved birth control any more than I have a legal obligation to
drink liquor simply because I eat dinner at a restaurant that serves it.

The polarizing question is whether or not you believe the
religious freedoms granted to individuals should be extended to the for-profit
corporations they helm. Personally, I am not convinced that limiting thousands
of employees’ access to a highly-effective form of birth control simply to
relieve the moral discomfort of a handful of people is what the founding
fathers had in mind. The fact that they were legally obligated to do so by
Federal law does little to diminish this. After all, Federal law also dictates
that Hobby Lobby pay all of their employees a set wage for the hours that they
work even though it is entirely possible that some of those same employees
could be utilizing that money to fund an extra-marital affair or gambling habit
(both of which I suspect The Greens would find morally reprehensible as well).

Many see the ruling as a victory for Christianity (I
personally don’t feel qualified speaking for Jesus concerning ovulation) while
others see this as yet another example of women’s healthcare choices being
suppressed by a panel of men. Wherever you fall on the political spectrum, this
ruling set a legal precedent whose reverberations we cannot possibly fathom
from this point in history. Perhaps, as the majority opinion insisted, this was
a narrow ruling directed at privately-held for-profit corporations strictly in
regard to contraceptives and will never be broadly interpreted in the future. I
fear they may be overly optimistic.